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05/17/2018

Justice Gorsuch Opines on Due Process and Civil Asset Forfeiture

In Sessions v. Dimaya,1 Justice Gorsuch concurred in the judgment of a fragmented Supreme Court but only in part of the plurality opinion by four other justices. Justice Gorsuch wrote a separate opinion to explain something he (but not the plurality) thinks is fundamental about due process. His concurring opinion highlights how civil cases, including forfeitures, now frequently impose harsher penalties than criminal prosecutions.

Dimaya involved federal statutes authorizing deportation of criminal aliens. The law designates specific crimes which, when an alien is convicted of them, allow nearly automatic deportation. It also has a “catch-all” provision that includes any felony that “by its nature” involves “substantial risk” of “physical force” against property or another person.2 The question in Dimaya was whether this catch-all provision was so vague that it did not provide fair notice about what crimes carry the risk of deportation, thereby violating the due process clause of the Fifth Amendment. The plurality (Justices Kagan, Ginsburg, Breyer, and Sotomayor) and Justice Gorsuch answered Yes, and together they held the statute void for vagueness. Dimaya, the convicted alien, won; Attorney General Sessions lost.

Justice Gorsuch’s opinion about why the winner won takes a different tack than the plurality took. Civil asset forfeiture is key to understanding why.

Deportation, like most forfeitures, is a civil matter, even after an alien is convicted and even though deportation is “a particularly severe penalty which may be of greater concern to a convicted alien than any potential jail sentence.”3 More than one commentator quickly noted that Justice Gorsuch did not join the plurality’s opinion that “the most exacting vagueness standard should apply to removal cases, because the penalty of deportation is so severe.”4

That’s where Justice Gorsuch draws the line. “My colleagues suggest the law before us should be assessed under the fair notice standard because of the special gravity of its civil deportation penalty. But, grave as that penalty may be, I cannot see why we would single it out for special treatment when (again) so many civil laws today impose so many similarly sever sanctions.”5

Enter forfeiture.

Ours is a world filled with more and more civil laws bearing more and more extravagant punishments. Today’s “civil” penalties include confiscatory rather than compensatory fines, forfeiture provisions that allow homes to be taken…. Some of these penalties are routinely imposed and are routinely graver than those associated with misdemeanor crimes—and often harsher than the punishment for felonies. And not only are punitive civil sanctions … rapidly expanding, they are sometimes more severely punitive than the parallel criminal sanctions for the same conduct. … Given all this, any suggestion that criminal cases warrant a heightened standard of review does more to persuade me that the criminal standard should be set above our precedent’s current threshold than to suggest the civil standard should be buried below it.

*             *             *

Why, for example, would due process require Congress to speak more clearly when it seeks to deport a lawfully resident alien than when it wishes to … confiscate [a citizen’s] home? I can think of no good answer.”6

Tyler Arnold and I have made similar points here about civil asset forfeiture. Justice Gorsuch’s point is both broader (also touching civil commitments and broad business licensing requirements) and narrower (not foreclosing the possibility that particular civil forfeitures can meet the requirements of the Due Process Clause) than ours. So be careful what you wish for. A constitutional due process challenge to civil asset forfeiture generally could still come out exactly wrong at this Supreme Court.

Mike Geske is counsel at Cause of Action Institute

1  Sessions v. Dimaya, 584 U.S.       , 138 S.Ct. 1204, 200 L. Ed. 549, 2018 U.S. LEXIS 2497 (April 17, 2018).

2 See 18 U.S.C. §16(b); see also 8 U.S.C. §1101(a)(43).

3 Dimaya, 138 S. Ct. at 1213, 200 L. Ed. at 558, 2018 LEXIS 2497 at * 15-16 (Kagan, J., plurality op.) (citations and quotations omitted).

4 Dimaya, 138 S. Ct. at 1213, 200 L. Ed. at 557-58, 2018 LEXIS 2497 at * 15 (Kagan, J., plurality op.) (citations and quotations omitted).

5 Dimaya, 138 S. Ct. at 1231, 200 L. Ed. at 578, 2018 LEXIS 2497 at * 56 (Gorsuch, J., concurring in part, concurring in judgment) (citations and quotations omitted).

6 Dimaya, 138 S. Ct. at 1229, 1231, 200 L. Ed. at 575-76, 578, 2018 LEXIS 2497 at *52-53, *56-57 (Gorsuch, J., concurring in part, concurring in judgment) (citations and quotations omitted; emphases by Justice Gorsuch).

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10/17/2017

Civil asset forfeiture policies shrug off due process

In 2014, American police seized more assets from American citizens through civil asset forfeiture policies than burglars stole.

Federal, state and local officers have broad scope to seize assets from Americans without trial or criminal charge, let alone proof that they committed any offense. While property owners can challenge a seizure in court, the burden of proof is on them and costly attorney fees and arcane procedures often discourage them. The value of the property is often less than cost to hire an attorney.

Only a handful of states require that, in some or all cases, police clearly and convincingly prove seized assets are linked to a violation. More than half of states only ask police to show that at the time of the seizure they had probable cause to believe that the property was tied to a violation. Probable cause is usually defined as more than a mere suspicion but less than a prima facie case. This is a much lower burden of proof than “clear and convincing evidence” or “beyond a reasonable doubt”. Anything less than having to show beyond a reasonable doubt that the property was connected to a crime lets the state take property from citizens without a conviction or even charge.

This is a slap in the face to due process. The Fourth Amendment demands:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Before the American revolution, the English Crown would permit customs officials to seize homes and vessels for alleged contraband or for on- or off-loading cargo without proof of having paid import and export duties and taxes.  Legal scholars have suggested this was “among the key grievances that triggered the American Revolution.”

To combat this practice, the founders guaranteed in the Fifth Amendment that “No person shall … be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

According to the New Yorker, asset forfeiture became a serious problem in the U.S. in the 1970s.  The forfeiture was aimed at fighting crime bosses and drug lords and these federal statutes permitted the seizure of assets tied to illegal drug production. When Congress passed the Comprehensive Crime Control Act in 1984, which permitted police departments to keep the proceeds from the forfeitures, the practice expanded, especially in poor areas.

If there is no due process, there is no rule of law. Proper order is impossible when institutions do not maintain fair and constitutional laws. Rather, the government fortifies institutional violations of law and decreases trust in police and government overall.

Apart from its intrinsic problems, civil asset forfeiture policies are also rife with corruption.

In more than 40 states, police departments keep at least 50 percent of the seized assets for themselves. In about half of those states, police are able to keep 100 percent of the seized assets. This provides police with an incentive to seize assets.

As the Washington Post reported, police use hundreds of millions of dollars they received from asset forfeiture to fund “guns, armored cars and electronic surveillance gear,” as well as “luxury vehicles, travel and a clown named Sparkles.”

Chicago alone seized $72 million over seven years, and used the money to purchase items, which include cell-phone tracking devices. As Reason reported, some seized assets in Illinois include “Xbox controllers, televisions, nunchucks, 12 cans of peas, a pair of rhinestone cufflinks, and a bayonet” supposedly linked to crimes. Police hit low-income areas the hardest.

“These forfeiture operations frequently target the poor and other groups least able to defend their interests in forfeiture proceedings,” Supreme Court Justice Clarence Thomas, said on the issue. “Perversely, these same groups are often the most burdened by forfeiture. They are more likely to use cash than alternative forms of payment, like credit cards, which may be less susceptible to forfeiture. And they are more likely to suffer in their daily lives while they litigate for the return of a critical item of property, such as a car or a home.”

Advocates of civil asset forfeiture policies argue the procedure deters crime and helps fund the police. In truth, Constitutional rights are surrendered for a false sense of security. This legal theft traduces due process and law and order. Crime deterrents only work if criminals are being targeted. If everyone is harmed by these policies, it doesn’t deter crime; it just diminishes Americans’ trust in law enforcement.

Tyler Arnold is a communications associate at Cause of Action Institute

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06/8/2017

Criminal Forfeiture Protects Property Owners More Than Civil Forfeiture

In two months, the Supreme Court of the United States has issued two opinions about forfeiture, the set of legal rules by which ownership in seized property is transferred to the State. Civil asset forfeiture is currently much in the news and recent opinions may obliquely portend some broad changes to that area of law, although the rulings do not expressly say so.  What the rulings do show is the shocking lack of protections available to property owners whose property is divested through civil forfeiture proceedings compared to when property is divested through criminal forfeiture.  In civil forfeiture, owners frequently have lower protections against losing their rights and face higher thresholds to recover their property than convicts whose property is forfeited as part of sentencing for their criminal acts.  Injustices arising out of criminal forfeiture, at least, are now under repair.  The Supreme Court may now be in a position to address civil forfeiture.

In Honeycutt v. United States, 581 U.S. ___, No. 16-142, slip op. (June 5, 2017), the Court limited the ability of prosecutors to use conspiracy and joint and severable liability doctrines to extend the effects of criminal forfeiture, defined as the statutory power of the “Government to confiscate property derived from or used to facilitate criminal activity.” Honeycutt, slip op. at 3.  A hardware store owner sold $400,000 of a product used to make methamphetamine.  The owner and his brother were both indicted and the Government sought forfeiture of about $269,000 profit from those sales.  As an hourly employee of the store owner, the convicted brother “never obtained tainted property,” Honeycutt, slip op. at 11, but rather had only been paid his wages.  The owner pleaded guilty and agreed to forfeit $200,000 as part of the sentence; a jury acquitted the brother of some counts but convicted him on some conspiracy charges; and the government sought to hold him jointly liable for the remaining $69,000 of profit by seeking criminal forfeiture from him.  The question, therefore, was whether the applicable statute allows conspiracy-related or joint and several liability for forfeiture judgments against convicted defendants who did not acquire “tainted property.”

The Court answered No. Criminal forfeiture may only be applied in judgment against persons actually convicted of a crime, only to the convicted person’s (and no other person’s) interest in the forfeited property, and only as a judgment arising from the counts on which the defendant was actually convicted.  Moreover, the statute at issue limits forfeiture “to the person’s property obtained directly or indirectly as a result of the crime,” and to property “acquired … during the period of the violation” for which there “was no likely source for such property other than” the crime. Honeycutt, slip op. at 4—5, 8.  Given those limitations, the Court ruled that

“Congress did not authorize the Government to confiscate substitute property from other defendants or coconspirators; it authorized the Government to confiscate assets only from the defendant who initially acquired the property and who bears responsibility for its dissipation. Permitting the Government to force other co-conspirators to turn over untainted substitute property would allow the Government to circumvent Congress’ carefully constructed statutory scheme….”   Honeycutt, slip op. at 9.

The Court ruled that the text of the statute at issue showed Congress had imported some in personam (literally, against the person) aspects into criminal forfeiture sentencing, but had retained the focus on “tainted property” that is included in purely in rem (literally, against the thing) civil forfeiture proceedings. Honeycutt, slip op. at 10.

By requiring some nexus between personal irresponsibility of the owner and the penalty of transferring ownership to the State, criminal forfeiture is more protective of property rights than civil forfeiture. As civil forfeiture law now stands, prior to eliciting evidence in the record of the brother having earned only an hourly wage, the government could have seized property of that value from the brother based on probable cause that it was “related” to a crime (based on evidence from the owner’s guilty plea) and likely forfeited it successfully.  At the very least, in that scenario, the burden of proving that the brother had innocently earned the $69,000 would have shifted to the brother before the money was ordered to be returned.

Indeed, civil asset forfeiture requires no nexus between any person’s individual responsibility and a proven crime, but rather only a nexus between the property at issue and a suspected crime.   This difference arises out of the distinction between in personam and in rem jurisdiction.  In effect, that doctrinal distinction has been carried so far that civil asset forfeiture can divest even innocent owners of property on the basis of mere probable cause to believe property is connected with a suspected crime, even if no crime is ever proved, even if there is not enough evidence to charge anyone with a crime, and even if the property was involved only through a third-party unknown to the owner.  Some procedures allow an innocent owner to recover property, but they are expensive and require legal involvement and provide no assurance that the property will be returned.

The injustice that can be worked against criminal defendants by these latter kinds of hurdles were displayed in Nelson v. Colorado, 581 U.S. ___, No. 15-1256, slip op. (April 19, 2017). After conviction, the State of Colorado sets up inmate accounts for defendants, and money they earn in jail is allocated from those accounts to pay costs, fees, and restitution.  When convictions are reversed, some defendants can seek refunds under Colorado’s Exoneration Act.  But under the Exoneration Act, a defendant must “prove her innocence by clear and convincing evidence….” Nelson, slip op. at 12.   The Supreme Court held that the Exoneration Act refund scheme did not comport with procedural due process requirements.

According to the Court, a state “may not presume a person, adjudged guilty of no crime, nonetheless guilty enough for monetary exactions;” instead, “[t]o comport with due process, a State may not impose anything more than minimal procedures on the refund of exactions dependent upon a conviction subsequently invalidated.” Nelson, slip op. at 7, 10.  But to most outside observers, that is exactly what often happens in civil asset forfeiture.  In civil forfeiture, no crime need be proved or even charged against the owner or, indeed, anyone else.   In fact, the guilt or innocence of the owner whose property is forfeited is irrelevant to an underlying civil forfeiture action, and a separate action or affirmative defense of remission or other mitigation must be initiated by an innocent owner.

If the Court’s limitation to nothing “more than minimal procedures” for a wrongfully convicted defendant to recoup criminal exactions is correct, then why should anyone, particularly an innocent owner in a civil asset forfeiture matter where no crime need be proved, still be required to participate in any action, even civil, where they might have to show by a preponderance or higher burden that they were innocent or otherwise entitled to maintain their property? The situation is even more egregious where civilly forfeited property was used by someone else without the owner’s knowledge.  The Supreme Court’s work in reforming the law governing forfeiture is only half done, at best.

Mike Geske is counsel at Cause of Action Institute

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